United States v. Nigel Clarke

• Court: Court of Appeals for the Fourth Circuit
• Decided: May 20, 2025
• Docket: 25-6133
• Status: Unpublished

Opinion

USCA4 Appeal: 25-6133 Doc: 7 Filed: 05/20/2025 Pg: 1 of 3

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 25-6133

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

NIGEL CLARKE,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Greenville. Louise W. Flanagan, District Judge. (4:02-cr-00060-FL-5; 4:23-cv-00179- FL)

Submitted: May 15, 2025 Decided: May 20, 2025

Before NIEMEYER and HEYTENS, Circuit Judges, and KEENAN, Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

Nigel Clarke, Appellant Pro Se.

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PER CURIAM:

Nigel Clarke seeks to appeal the district court’s order accepting the recommendation

of the magistrate judge and dismissing without prejudice Clarke’s 28 U.S.C. § 2255 motion

as an unauthorized, successive § 2255 motion. The order is not appealable unless a circuit

justice or judge issues a certificate of appealability. ∗ See 28 U.S.C. § 2253(c)(1)(B). A

certificate of appealability will not issue absent “a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). When, as here, the district court denies relief

on procedural grounds, the prisoner must demonstrate both that the dispositive procedural

ruling is debatable and that the motion states a debatable claim of the denial of a

constitutional right. Gonzalez v. Thaler, 565 U.S. 134, 140-41 (2012) (citing Slack v.

McDaniel, 529 U.S. 473, 484 (2000)).

We have independently reviewed the record and conclude that Clarke has not made

the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the

appeal. We dispense with oral argument because the facts and legal contentions are

∗ The district court concluded that it did not need to decide whether to issue a certificate of appealability based on our decision in Bixby v. Stirling, 90 F.4th 140 (4th Cir. 2024). Bixby was an appeal from a district court order construing a Fed. R. Civ. P. 60(b) motion as an unauthorized, successive 28 U.S.C. § 2254 petition, and we reaffirmed our decision in United States v. McRae, 793 F.3d 392 (4th Cir. 2015), that a certificate of appealability was unnecessary. Bixby, 90 F.4th at 156-57. Here, however, the district court did not construe a Rule 60(b) motion as an unauthorized, successive § 2255 motion. Instead, it dismissed Clarke’s third § 2255 motion as an unauthorized, successive § 2255 motion. And we still require a certificate of appealability in such circumstances.

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adequately presented in the materials before this court and argument would not aid the

decisional process.

DISMISSED